Shyam Gupta vs State Of U.P.
2015 Latest Caselaw 3776 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								A.F.R.
 
			JUDGMENT RESERVED ON  :  06.10.2015
 
			JUDGMENT DELIVERED ON :   03.11.2015
 
Case :- CRIMINAL APPEAL No. - 1106 of 2011
 

 
Appellant :- Shyam Gupta 
 
Respondent :- State Of U.P. 

Counsel for Appellant :- Smt. Pushpa Singh,Jai Raj Singh Tomar,Om Gupta,R.B. Verma,R.D.Tiwari 

Counsel for Respondent :- Govt. Advocate,Durvijay Singh 

Hon'ble Om Prakash-VII,J. 

1. Present Criminal Appeal has been directed by the accused appellant Shyam Gupta against the judgment and order dated 15.1.2011 passed by the Additional Sessions Judge/Fast Track Court No. 1, Farrukhabad in Sessions Trial Nos. 311 of 2008 and 313 of 2008 State Vs. Shyam Gupta pertaining to Crime No. 449 of 2008 and 450 of 2008 whereby the trial court has convicted and sentenced the accused appellant for the offence under Section 307 IPC to undergo 10 years' rigorous imprisonment and a fine of Rs. 10,000/- and for the offence under Section 25/27 Arms Act to undergo 3 years' rigorous imprisonment and a fine of Rs. 5,000/-, for 7 Criminal Law Amendment Act 6 months imprisonment and a fine of Rs. 500/-. All the sentences have been ordered to run concurrently. In default of payment of fine to undergo additional imprisonment was also ordered.

2. The prosecution story in nutshell is as follows :

3. Written report (Ext. Ka-1) was moved at the police station concerned by the informant Ram Prakash Kaushal mentioning therein that on 23.5.2008 at about 9 A.M. informant's son Sanjeev Kumar Kaushal alias Shyamu was opening his shop in the chowk market. Shop of Samosa Kachauri (Light Refreshment) belonging to the appellant was also situated in the same locality. Rs. 1,400/- was due against Shyam Gupta of Sanjeev Kumar. On 22.5.2008 Sanjeev Kumar had demanded the amount from Shyam Gupta. Due to this reason the accused appellant at 9 AM came to the shop of Sanjeev Kumar and started abusing and stated that you are making demand of money regularly and he will see today. Saying this the accused appellant took out country made pistol from his body and opened the fire upon Sanjeev Kumar with the intention to kill him. Sanjeev Kumar received injuries and fell down on the earth. The incident was witnessed by Ram Babu Agnihotri son of Sohan Lal and Rajeev Kumar and other people present there. Again accused appellant Shyam Gupta made fire in the air and threatened that if anyone dare to give evidence against him he will also face the same consequences. People ran away from the place of occurrence leaving their shoes and slippers at the place of occurrence. Some people came forward and apprehended the accused appellant on the spot. One country made pistol of 315 bore and one dead and two live cartridges were also recovered from his possession.

4. On the basis of written report Ext. Ka-1 chik F.I.R. Ext. Ka-5 was registered on 23.5.2008 at 9.45 A.M. itself. G.D. entry (Ext. Ka-6) was also made. The country made pistol and cartridges said to have been recovered from the possession of the appellant was also taken into custody by the police and kept in a sealed cover entering these facts into the G.D.

5. Injured was medically examined at P.H.C. Kayamganj on 23.5.2008 at 9.15 A.M.. Following injury was found on the body:

"Gun shot wound .5 cm x .5 cm x bone deep on the left side of back 7 cm below shoulder bone, blackening of gun powder in an area of 30 cm near the left elbow of left hand.

Blackening in an area of 4 cm x 10 cm on the left forearm back side."

6. In the opinion of the Doctor injury was kept under observation and X-ray was advised. Injury report Ext. Ka-3 was also prepared.

7. Supplementary report Ext. Ka-4 was prepared by the Doctor concerned and a radio opaque shadow of metallic density (Bullet like) was seen on the left side of lower chest, ground spinal cord. According to Radiologist injury was caused by some fire arm. X-ray report Ext. Ka-4 was also proved by the prosecution.

8. Investigating officer visited the place of occurrence and prepared the site plan (Ext. Ka-9), recorded the statement of the witnesses and also took the shoes and slippers of the people lying on the spot and prepared the memo (Ext. Ka-8). After completing the formalities, recorded the statement of the witnesses and submitted the charge sheets (Ext. Ka-11 and Ka-12) against the accused appellant after obtaining the sanction from the concerned District Magistrate through Ext. Ka-10.

9. Concerned Magistrate took the cognizance in both the cases. Since the charge sheet submitted for the offence under Section 307 IPC and 7 Criminal Law Amendment Act was exclusively triable by the court of sessions hence both the cases being related to same transaction were committed to the court of sessions for trial.

10. Accused appellant appeared and the trial court consolidating both the cases, framed the charges against the accused appellant under Section 307 PC and Section 7 Criminal Law Amendment Act in S.T. No. 311 of 2008 and under Section 25/27 Arms Act in S.T. No. 313 of 2008.

11. Accused appellant pleaded not guilty and claimed his trial.

12. In order to prove its case prosecution examined P.W-1 S.I. Ram Prakash Kaushal; P.W. -2 Sanjeev Kumar Kaushal, informant; P.W.-3 Dr. Dharmendra Kumar; P.w.-4 Constable Kashmir Singh; P.w.-5 Dr. R. C. Arun and P.W. -6 S.I.. Jiyalal Gangwar.

13. After closer of the proseuction evidence statement under Section 313 Cr.P.C. of the accused appellant was also recorded in which he stated the whole prosecution evidence to be false and claimed himself innocent. He has specifically stated that Budha Sen, the brother-in-law of the accused appellant had taken one shop on rent from the informant and it was being asked by him to vacate the premises, therefore, accused appellant was falsely implicated in this matter.

14. Trial court after hearing the parties and going through the entire record convicted and sentenced the accused appellant as above, hence this appeal.

15. I have heard Shri O.P. Gupta and Smt. Pushpa Singh, learned counsel for the appellant and Shri Zafeer Ahmad, learned AGA appearing for the State. Despite repeated calls, Shri Durgvijay Singh, learned counsel for the complainant did not appear.

16. Assailing the findings recorded in the impugned judgment and order learned counsel for the appellant submitted that the prosecution could not prove its case beyond reasonable doubt. Medical evidence does not support the prosecution version. Only one injury was found on the person of the injured which was also not fatal to the life. It was further argued that prosecution case is not supported from any independent witnesses though independent witness were cited in the F.I.R., therefore, it will be presumed that if those witnesses would have been examined they would not have supported the prosecution. It was next submitted that investigation in the matter is per-fucntory which caused prejudice to the accused appellant. Investigating officer has not taken blood stained and plain earth from the place of occurrence. He has also not taken blood stained cloth of the injured, therefore, place of occurrence was also not established in the matter by the prosecution. If the prosecution story as a whole is taken into consideration then also at the most offence under Section 324 and 325 IPC is attracted against the accused appellant. Accused appellant has served out the major portion of the substantial sentence. Defence witnesses have clearly stated that one Rajeev Kumar has made the fire. The finding recorded by the trial court is perverse. It was further argued that offence under Section 25/27 Arms Act is also not proved by the prosecution as live and dead cartridges said to have been recovered from the possession of appellant were not produced before the court and the recovery is false one.

17. Learned A.G.A. Argued that prosecution witnesses have supported the prosecution case. P.W.-2 Sanjeev Kumar is the injured witness. He has fully supported the prosecution case. Medical evidence also support the oral version of the prosecution witnesses. Second fire said to have been made by the accused appellant did not hit to any person. Trial court findings are in accordance with the fact and evidence. Sanction for prosecution under the Arms Act was legally obtained by the Investigating Officer and was proved before the court below.

18. I have considered the rival submissions and gone through the entire record.

19. In this matter offence is said to have taken place on 23.5.2008 at 9 A.M. in the morning. F.I.R. was lodged on the same day after few minutes. Place of occurrence is the busy market place. Police station was situated only half km. away from the place of occurrence. Looking to the entire facts and circumstances of the case and the facts mentioned in the written report Ext. Ka-1 regarding lodging of the F.I.R. and the statement made by the informant in this regard, I am of the view that F.I.R. was lodged in the matter promptly and it cannot be levelled as too prompt. Finding recorded by the trial court on this point is not interferable.

20. As far as the medical evidence is concerned Doctor examining the injured has clearly opined that injury found on the person of the injured could be caused with the fire arm. Prosecution case is that one single fire was made by the accused appellant upon the injured. Only one injury was found on the body of the injured. Injured was medically examined within few minutes of the incident at P.H.C. Kayamganj. The symptom found in the injury also supported the prosecution version as duration of the injury at the time of examination was fresh. Thus the finding recorded by the trial court regarding medical evidence can not be termed to be illegal or perverse. Medical evidence is in consonance with the oral version.

21. So far as presence of the P.W.-1 on the spot is concerned he has stated that he was present on the spot at the time of incident. P.W.-2 is the injured, who was opening his shop at the time of the incident. Accused appellant reached the place of occurrence and started abusing the injured. It is also prosecution case that hot talk took place at that time between both of them. Medical evidence suggests that injury is on the back side of the injured. Blackening was also found by the Doctor on the injuries. Duration was fresh. Submission of the learned counsel for the appellant is that prosecution could not make clear the name of the persons who had apprehended the accused appellant. P.W.-1 is the father of the injured but he has not made any effort to apprehend the accused appellant. Submission of the learned counsel for the appellant is also that one Rajeev, brother of the injured, opened fire during hot talk and the accused appellant was falsely implicated in this case due to the reason stated by the appellant.

22. To scrutinise the submissions raised on behalf of the appellant, I have carefully gone through the evidence and the findings recorded by the trial court. Certainly injury found on the body of the injured is on the back side. Accused appellant himself has admitted in the defence evidence his presence on the spot at the time of occurrence. Incident took place in the morning hour near the shop of the injured. Opening of shop in the morning hours and presence of P.W.-1 and P.W.-2 at that time at the place of occurrence could not be doubted especially when medical evidence is not in conflict with oral evidence.

23. From the close scrutiny of entire evidence it is also clear that a hot talk took place between the appellant and the injured just before the incident. This fact also finds support from the statement of defence witnesses. Thus the presence of injured at the time of the occurrence on the place where the incident is said to have taken place is clearly established not only from the prosecution evidence but also from the defence evidence. Finding recorded by the trial court regarding presence of the P.W.-2 Sanjeev at the date, time and place of occurrence is based on the evidence available on record. So long as the presence of P.W.-1 on the spot is concerned he has stated that he also accompanied the injured and was present at that time. If for the sake of argument presence of P.W.-1 on the spot at the time of incident is not taken as correct then also the presence of P.W.-2, the injured as has been mentioned above is fully established from the evidence. It is also established that medical evidence is not in conflict with the oral version rather medical version fully support the oral version.

24. The weapon said to have been recovered from the possession of the appellant was not sent to the Forensic Science Laboratory to ascertain that whether the said weapon was used at that time in the crime or not. This was the lapse on the part of the prosecution or Investigating Officer. Similarly only country made pistol of 315 bore and one cartridge was produced before the court during examination. Prosecution consistently relied on the fact that one dead and two live cartridges along with 315 bore country made pistol were recovered from the possession of the appellant on the spot itself. Prosecution has not explained as to why the two other cartridges said to have been recovered from the possession of the appellant were not produced before the court. This fact create doubt about the recovery of the said weapon from the possession of the accused appellant. Investigating Officer has also not taken any blood stained earth and plain earth from the scene of occurrence. Blood stained cloth was also not taken by him. In the present matter the place where the incident took place is near the shop of the injured. The latches are on the part of the investigating officer but the same are not fatal to the prosecution case. The statement made by the defence witnesses that one Rajeev opened fire could not be relied upon. Finding recorded by the trial court on this point cannot be termed to be illegal or perverse and the same does not require any interference.

25. As far as the recovery of the country made pistol from the appellant is concerned certainly the witnesses examined by the prosecution have stated that the said weapon was recovered from the appellant. But P.W.-1 has also stated that he does not know who apprehended the appellant on the spot. Similar is the statement of the P.W.-2 the injured. Some independent witnesses have been cited in the F.I.R. on this point but they were not examined before the court, therefore, recovery of the country made pistol from the accused appellant is not supported by any independent witness. It is the prosecution case that the weapon said to have been recovered from the appellant on the spot was brought by the informant and his companion to the police station along with the accused appellant and it was handed over to the police. Since the said country made pistol was not sent for ballistic examination to ascertain that the weapon had been used in commission of the present crime and also taking into consideration this fact that prosecution did not produce the two other cartridges said to have been recovered from the appellant at the time of the said recovery, therefore, in my considered view the finding recorded by the trial court regarding guilt of the accused appellant under Section 25 and 27 Arms Act is not sustainable. Prosecution could not prove the charge framed against the accused appellant for the offence under Section 25 and 27 of the Arms Act beyond reasonable doubt.

26. Now the question arises that if the weapon said to have been recovered from the possession of the appellant was not found used in the commission of the crime and accused appellant is entitled to be acquitted from the charges under Section 25/27 Arms Act on the ground of benefit of doubt then whether the charges framed against the appellant under Section 307 IPC and Section 7 Criminal Law Amendment Act would be sustainable? In this respect it is noteworthy that merely on the ground that recovery of the weapon is found false, the charges levelled against the accused appellant under Section 307 IPC could not be taken ipso facto as not proved. The prosecution evidence regarding charge under Section 307 IPC is reliable. There is no conflict between the oral and medical evidence. Now remains only the charge under Section 7 Criminal Law Amendment Act. Accused appellant has been punished for the offence under Section 307 IPC to undergo 10 years' rigorous imprisonment and fine of Rs. 10,000/- and in default of payment of fine to undergo 2 years' additional imprisonment. Similarly for the offence under Section 7 Criminal Law Amendment Act accused appellant has been punished for six months' imprisonment and a fine of Rs. 5,000/- and in default of payment of fine to undergo one month additional imprisonment. A perusal of the entire record also shows that the prosecution was not able to establish before the court below that accused appellant was a habitual offender or he was previously convicted person or number of cases were pending against him. The present incident is purely a personal revenge. Thus the finding recorded by the trial court regarding conviction of the accused appellant for the offence under Section 7 Criminal Law Amendment Act is also not in accordance with law. The accused appellant in my considered opinion is liable to be acquitted for the offence under Section 7 Criminal Law Amendment Act. But the charge under Section 307 IPC for the reasons mentioned above is sustainable and no interference is required in the finding of the trial court regarding conviction under Section 307 IPC.

27. Thus on the basis of analysis of the entire evidence and on its re-appreciation this Court finds that appeal is liable to be partly allowed. Accused appellant, for the reasons mentioned above, is liable to be acquitted for the offence under Section 25/27 Arms Act and 7 Criminal Law Amendment Act.

28. As far as the punishment imposed by the trial court for the offence under Section 307 IPC is concerned it is the boundan duty of the court to impose adequate and proportionate punishment according to the nature and gravity of the crime.

29. So far as the quantum of punishment is concerned, Hon'ble Supreme Court in Gurmukh Singh Vs. State of Haryana reported in (2009) 15 SCC 635 in para no. 23 and 24 held as under :

"23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:

a) Motive or previous enmity;

b) Whether the incident had taken place on the spur of the moment;

c) The intention/knowledge of the accused while inflicting the blow or injury;

d) Whether the death ensued instantaneously or the victim died after several days;

e) The gravity, dimension and nature of injury;

f) The age and general health condition of the accused;

g) Whether the injury was caused without pre-

meditation in a sudden fight;

h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

i) The criminal background and adverse history of the accused;

j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

k) Number of other criminal cases pending against the accused;

l) Incident occurred within the family members or close relations;

m) The conduct and behaviour of the accused after the incident.

Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?

These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused."

30. I have also gone through the law laid down in Sumer Singh Vs. Surajbhan Singh and others reported in (2014) 7 SCC 323.

31. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. Undue sympathy should not be extended to the accused. Punishment should also be in quantum with the nature of gravity of the crime and also to conform the conscience of the society. It should also be adequate to deter the criminal to commit the crime. Thus if the above guidelines and principles laid down by the Hon'ble Apex Court are applied in the facts and circumstances of the present case, when the charge under Section 25/27 Arms Act was not found proved by the prosecution beyond reasonable doubt, section 7 Criminal Law Amendment Act is also not attracted in the present matter then this Court is of the view that if the accused appellant is punished in the present matter for the offence under Section 307 IPC for 8 years rigorous imprisonment it would meet the ends of justice and would also sub-serve the purpose of imposing adequate and proportionate sentences and in conformity with the conscience of the society. It would not be as to be giving undue sympathy to the accused appellant. As far as the fine imposed for the offence under Section 307 IPC upon the appellant is concerned, the fine amount is not changed but the additional imprisonment to undergo in default of payment of fine being quite excessive and unreasonable reduced to one year in place of two years. It would also sub serve the purpose of sentencing the additional imprisonment in default of payment of fine.

32. Thus on the basis of foregoing discussion the appeal having some merit is partly allowed. Appellant Shyam Gupta is acquitted for the offence under Section 7 Criminal Law Amendment Act and 25/27 Arms Act in Sessions Trial No. 311 of 2008 and 313 of 2008 (State Vs. Shyam Gupta). Conviction imposed upon the accused appellant under Section 307 IPC in Sessions Trial No. 313 of 2008 (State Vs. Shyam Gupta) is affirmed but the punishment imposed for the offence under Section 307 IPC is modified and reduced to 8 years in place of 10 years rigorous imprisonment to afford an opportunity to the appellant to reform himself. Fine imposed for the offence under Section 307 IPC is not changed but the additional imprisonment to undergo in default of payment of fine is modified and reduced to the extent of only one year.

33. Record of the trial court along with copy of this judgment be sent to the Court concerned and Chief Judicial Magistrate concerned for immediate compliance. Compliance report be also submitted to this Court.

November 3, 2015

Sachdeva